Politics Trumps Economics? Trump’s Revocation of California’s Waiver Under the Clean Air Act

Today President Trump announced on Twitter that the U.S. was revoking California’s waiver under the Clean Air Act (CAA) which allowed it to impose stricter tailpipe emission standards than the federal ones. California’s Governor Newsom and Attorney General Becerra immediately announced that the state would file suit to challenge the revocation.

While the revocation has been characterized as an immediate rollback, the federal corporate average fuel economy (CAFE) standards[1] established under the previous administration, which are consistent with California’s, remain in place. Last year the Trump administration proposed to rollback those standards, freezing the efficiency and emission rules in 2021 and canceling further increases in stringency set through 2028. The final rule has not yet been issued. It is rumored that it will not be, as the administrative record supporting it has many problems and most acknowledge that it faces significant legal hurdles. Continue Reading

Endangered Species Act Rulemakings Face Immediate Challenge

On August 27, 2019, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the “Services”) published final rules amending three important parts of the federal regulations that implement the Endangered Species Act (16 U.S.C. §§ 1531 et seq.). The amended rules, which will take effect on September 26:

  • Eliminate the automatic extension of protections to threatened (as opposed to endangered) species;
  • Revise the provisions for designating critical habitat and listing and de-listing species under ESA Section 4; and
  • Revise the procedures for interagency consultation under ESA Section 7.

Continue Reading

FERC Approves MISO’s Tariff Change Permitting Generators to Voluntarily Share Interconnection Facilities

On August 13, 2019, the Federal Energy Regulatory Commission (FERC) approved a request by Midcontinent Independent System Operator, Inc. (MISO) to modify its Tariff and pro forma Generator Interconnection Agreement (GIA) to permit shared interconnection facilities among multiple projects in cases where all parties are amenable to such an arrangement. The Tariff modifications now allow electric generators located in MISO to share interconnection facilities through consent agreements. Previously, MISO did not permit the sharing of interconnection facilities between different projects due to the administrative and practical challenges with such arrangements. However, MISO changed its position after FERC issued Order 807, which created a blanket waiver of certain regulatory requirements, including the obligation to file an Open Access Transmission Tariff (OATT), for certain entities. MISO noted that Order 807 significantly reduced the administrative complexity of many shared facilities arrangements, and led to increased interest in new interconnection arrangements as a means to speed development and/or reduce development costs. Nevertheless, generators should still be careful to meet all remaining MISO Tariff requirements for such agreements. Continue Reading

Court of Appeal Rules HERO Cannot Save Previously Vacated Rental Units

In rejecting a California Environmental Quality Act challenge to a mitigated negative declaration for conversion of a vacant apartment building into a 24-room boutique hotel (the “Project”), the Second District Court of Appeal affirmed the City of Los Angeles’s use of an existing conditions baseline when assessing housing and population impacts. The decision in Hollywoodians Encouraging Rental Opportunities (HERO) v. City of Los Angeles et al. (2019) ___ Cal.App.5th ____ indicates that the time for courts to address population displacement, and more specifically affordable housing, as a CEQA-cognizable impact is fast approaching. Continue Reading

9th Circuit Says CPUC’s Standard Contract and Re-MAT Program for Certain Renewable Generators are not PURPA Compliant

In a recent opinion, the Ninth Circuit held that the California Public Utilities Commission’s (CPUC) Renewable Market Adjusting Tariff (Re-MAT) program and alternative Qualifying Facility (QF) standard offer contract (Standard Contract) were preempted by federal law. The Re-MAT program and Standard Contract required California utilities to purchase energy from certain QFs with capacities up to three and twenty megawatts (MWs), respectively. The court found that the program and the contract violated the Public Utility Regulatory Policies Act of 1978’s (PURPA) pricing requirements. The decision, Winding Creek Solar LLC v. Peterman, USCA Case Nos. 17-17531 and 17-17532 (9th Cir. 2019) demonstrates that PURPA continues to maintain a floor from which state regulatory programs must encourage the development of renewable energy from small producers. In 2018 and prior to Winding Creek, the CPUC instituted a rulemaking to consider adoption of a new Standard Contract but has not yet taken action. Winding Creek reemphasizes the importance of that proceeding for ensuring that California has a PURPA-compliant program in place for utilities to purchase QF-produced energy. Continue Reading

FERC Order No. 860 Mandates New Market-Based Rate Filing and Reporting Requirements for Sellers of Electric Energy

On July 18, 2019, the Federal Energy Regulatory Commission issued Order No. 860.  The order requires entities with or seeking market-based rate authority (sellers) to submit certain data related to FERC’s market power analyses, including its indicative screens and asset appendices, into a “relational database” maintained by FERC.  The order also requires the submission of information associated with long-term firm sales.  When changes occur to data previously submitted, the relational database must be updated monthly by sellers.  The database will be used to, among other things, develop asset appendices and indicative screens for FERC filings that require a market power analysis.  Finally, Order No. 860 altered the deadline for “change in status” filings.  Beginning on January 1, 2021, sellers will need to comply with the order by making a baseline submission and using the “relational database” to make future market-based applications. Continue Reading

FERC Order No. 856-A Clarifies Regulations Regarding Interlocking Directorates of Public Utilities and Certain Other Entities

The Federal Energy Regulatory Commission in Order No. 856-A on July 18, 2019 granted in part and denied in part a request for rehearing of Order No. 856. Order No. 856 eased restrictions on current or potential interlocking officers and directors, where the circumstances would not involve substantial opportunities for conflicts of interest or self-dealing. Order No. 856 and 856-A will be helpful to individuals employed at financial institutions or at public utilities who seek to or currently hold positions across both types of businesses.  As described in detail below, the orders’ clarifications limited the instances when applicants would be required to obtain Commission approval or file notice of changes, permitted certain temporary appoints, and also eased FERC’s prior position regarding late filings. Continue Reading

Following Suit – City of Los Angeles Updates CEQA Guide to Include VMT Methodology Ahead of State-Imposed Deadline

On July 30, 2019, the Los Angeles City Council unanimously approved an update to the “Transportation” section of the City’s California Environmental Quality Act (“CEQA”) Threshold Guide.  City Council’s action has effectively updated the framework for evaluating traffic impact analysis to a vehicle miles traveled (“VMT”) metric in accordance with updated CEQA Guidelines section 15064.3 and Senate Bill 743.  Per the City’s Planning Department, by shifting to a VMT-centric analysis, the City will be better positioned to assess potential impacts on the City’s transportation system, as well as meet its climate change goals. Interestingly, while the City Council action is complete, there is still a bit of confusion at the City as to how the VMT metric will, in practice, be phased in for projects already in the planning process.  Continue Reading

Sustainable Communities Environmental Assessment Upheld Under CEQA

In Sacramentans for Fair Planning v. City of Sacramento (2019) ___ Cal.App. 5th ___, the Third District Court of Appeal upheld the City of Sacramento’s use of a sustainable communities environmental assessment (“SCEA”) pursuant to the Sustainable Communities and Climate Protection Act (SB 375), rather than a more traditional CEQA document (i.e., an environmental impact report or mitigated negative declaration), when it approved the Yamanee development (the “Project”) as a transit priority project (“TPP”). The mixed-use Project comprised one floor of commercial space, three levels of parking, 134 residential condominiums and one floor of residential amenities, for a total of 177,032 square feet on a 0.44-acre site. The Project also included inconsistencies with the City’s general plan density and building intensity standards. The court rejected arguments that the City improperly utilized a regional transportation and greenhouse gas (“GHG”) reduction plan in approving the SCEA; or that the SCEA should have further analyzed the Project’s cumulative impacts, and not relied on tiering off past EIRs. The holding further affirms the innovative and beneficial use of SCEAs in streamlining environmental review for qualifying TPPs. Continue Reading

California State Budget Summary: Allocations for Housing and Homelessness

On June 26, 2019, California Governor Gavin Newsom signed the Fiscal Year 2019-20 State Budget into law. The State’s fiscal year begins July 1st and funding will be available by end of July 2019. The approved budget allocates $2.4 billion to help address homelessness and affordable housing needs, and includes:[1]

  • Short-term planning and infill infrastructure grants;
  • Funding for housing tax credits and moderate‑income housing production;
  • General Fund one‑time funding for homelessness;
  • Funding for permanent supportive housing;
  • Proposals and procedures for innovative development of State property for affordable housing.

Continue Reading

LexBlog

By scrolling this page, clicking a link or continuing to browse our website, you consent to our use of cookies as described in our Cookie and Advertising Policy. If you do not wish to accept cookies from our website, or would like to stop cookies being stored on your device in the future, you can find out more and adjust your preferences here.

Agree